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CASE NO.: Appeal (crl.)  1097 of 2002

PETITIONER: State of Rajasthan

RESPONDENT: Babu Ram

DATE OF JUDGMENT: 05/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Rajasthan High Court at Jodhpur  allowing the appeal filed by the respondent (hereinafter  referred to as the ’accused’). Before the High Court the  challenge was to the order dated 31.8.1987 passed by the  learned Sessions Judge, Balotra, in Sessions Case No.10/86  by which while acquitting the accused for offence punishable  under Section 18 of the Narcotic Drugs & Psychotropic  Substance Act, 1985 (hereinafter referred to as the ’Act’),  convicted him for offence punishable under Section 17 of the  Act and sentenced him to undergo RI for 10 years and to pay a  fine of rupees one lakh with default stipulation.   

2.      The High Court directed acquittal on the ground that  there was non-compliance of mandatory requirement of  Section 50 of the Act.  Before the High Court though many  points were urged, the primary stand was non-compliance of  Section 50 of the Act.  The High Court accepted that there was  non-compliance as alleged.  Accordingly, the respondent was  acquitted by setting aside the conviction and consequential  sentence.   

3.      In support of the appeal, learned counsel for the  appellant-State submitted that search was not of person of the  accused and of bag which was with accused and, therefore,  the High Court erroneously held that the requirements of  Section 50 of the Act were required to be complied with.      4.      The controversy turns round Section 50 of the Act and  the same (at the relevant time) reads as under: "Conditions under which search of  persons shall be conducted:  (1) When any officer duly authorized under  Section 42 is about to search any person  under the provisions of Section 41, section 42  or Section 43, he shall, if such person so  requires, take such person without  unnecessary delay to the nearest Gazetted  Officer of any of the departments mentioned in  Section 42 or to the nearest Magistrate. (2)     If such requisition is made, the officer  may detain the person until he can bring him  before the Gazetted Officer or the Magistrate  referred to in sub-section (1). (3)       The Gazetted Officer or the Magistrate

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before whom any such person is brought shall,  if he sees no reasonable ground for search,  forthwith discharge the person but otherwise  shall direct that search be made. (4)        No female shall be searched by anyone  excepting a female."  5.       The question, which requires consideration, is what is  the meaning of the words "search any person" occurring in  Sub-section (1) of Section 50 of the Act. Learned counsel for  the accused has submitted that the word "person" occurring in  Section 50 would also include within its ambit any bag,  briefcase or any such article or container, etc., being carried  by such person and the provisions of Section 50 have to be  strictly complied with while conducting, search of such bag,  briefcase, article or container, etc. Learned counsel for the  State has, on the other hand, submitted that there is no  warrant for giving such an extended meaning and the word  "person" would mean only the person himself and not any bag,  briefcase, article or container, etc., being carried by him. 6.       The word "person" has not been defined in the Act.  Section 2(xxix) of the Act says that the words and expressions  used herein and not defined but defined in the Code of  Criminal Procedure have the meanings respectively assigned  to them in that Code. The Code, however, does not define the  word "person". Section 2(y) of the Code says that the words  and expressions used therein and not defined but defined in  the Indian Penal Code, 1860 have the meanings respectively  assigned to them in that Code. Section 11 of the Indian Penal  Code says that the word "person" includes any Company or  Association or body of persons whether incorporated or not.  Similar definition of the word "person" has been given in  Section 3(42) of the General Clauses Act. Therefore, these  definitions render no assistance for resolving the controversy  in hand. 7.       One of the basic principles of interpretation of Statutes  is to construe them according to plain, literal and grammatical  meaning of the words. If that is contrary to, or inconsistent  with, any express intention or declared purpose of the Statute,  or if it would involve any absurdity, repugnancy or  inconsistency, the grammatical sense must then be modified,  extended or abridged, so far as to avoid such an  inconvenience, but no further. The onus of showing that the  words do not mean what they say lies heavily on the party who  alleges it. He must advance something which clearly shows  that the grammatical construction would be repugnant to the  intention of the Act or lead to some manifest absurdity (See  Craies on Statute Law, Seventh ed. page 83-85). In the well  known treatise - Principles of Statutory Interpretation by  Justice G.P. Singh, the learned author has enunciated the  same principle that the words of the Statute are first  understood in their natural, ordinary or popular sense and  phrases and sentences are construed according to their  grammatical meaning, unless that leads to some absurdity or  unless there is something in the context or in the object of the  Statute to suggest the contrary (See the Chapter - The Rule of  Literal Construction -page 78 - Ninth ed.). This Court has also  followed this principle right from the beginning. In  Jugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376,  S.R. Das, J. said: - "The cardinal rule of construction of statutes is  to read the statute literally, that is, by giving to  the words used by the legislature their  ordinary, natural and grammatical meaning. If,  however, such a reading leads to absurdity  and the words are susceptible of another

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meaning the Court may adopt the same. But if  no such alternative construction is possible,  the Court must adopt the ordinary rule of  literal interpretation."

8.      A catena of subsequent decisions have followed the same  line. It, therefore, becomes necessary to look to dictionaries to  ascertain the correct meaning of the word "person". 9.       A bag, briefcase or any such article or container, etc.  can, under no circumstances, be treated as body of a human  being. They are given a separate name and are identifiable as  such. They cannot even remotely be treated to be part of the  body of a human being. Depending upon the physical capacity  of a person, he may carry any number of items like a bag, a  briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a  holdall, a carton, etc. of varying size, dimension or weight.  However, while carrying or moving along with them, some  extra effort or energy would be required. They would have to  be carried either by the hand or hung on the shoulder or back  or placed on the head. In common parlance it would be said  that a person is carrying a particular article, specifying the  manner in which it was carried like hand, shoulder, back or  head, etc. Therefore, it is not possible to include these articles  within the ambit of the word "person" occurring in Section 50  of the Act.  10.      The scope and ambit of Section 50 of the Act was  examined in considerable detail by a Constitution Bench in  State of Punjab v. Baldev Singh (1999 (6) SCC 172)and para  12 of the reports is being reproduced below : "12. On its plain reading, Section 50 would  come into play only in the case of a search of a  person as distinguished from search of any  premises etc. However, if the empowered  officer, without any prior information as  contemplated by Section 42 of the Act makes a  search or causes arrest of a person during the  normal course of investigation into an offence  or suspected offence and on completion of that  search, a contraband under the NDPS Act is  also recovered, the requirements of Section 50  of the Act are not attracted."

11.     The Bench recorded its conclusion in para 57 of the  reports and sub-paras (1), (2), (3) and (6) are being reproduced  below : "57. On the basis of the reasoning and  discussion above, the following conclusions  arise: (1) That when an empowered officer or a duly  authorized officer acting on prior information  is about to search a person, it is imperative for  him to inform the person concerned of his  right under Sub-section (1) of Section 50 of  being taken to the nearest gazetted officer or  the nearest Magistrate for making the search.  However, such information may not  necessarily be in writing. (2) That failure to inform the person concerned  about the existence of his right to be searched  before a gazetted officer or a Magistrate would  cause prejudice to an accused. (3) That a search made by an empowered  officer, on prior information, without informing  the person of his right that if he so requires, he  shall be taken before a gazetted officer or a

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Magistrate for search and in case he so opts,  failure to conduct his search before a gazetted  officer or a Magistrate may not vitiate the trial  but would render the recovery of the illicit  article suspect and vitiate the conviction and  sentence of an accused, where the conviction  has been recorded only on the basis of the  possession of the illicit article, recovered from  his person, during a search conducted in  violation of the provisions of Section 50 of the  Act.         xx              xx                      xx (6) That in the context in which the protection  has been incorporated in Section 50 for the  benefit of the person intended to be searched,  we do not express any opinion whether the  provisions of Section 50 are mandatory or  directory, but hold that failure to inform the  person concerned of his right as emanating  from Sub-section (1) of Section 50, may render  the recovery of the contraband suspect and the  conviction and sentence of an accused bad and  unsustainable in law."

12.     These aspects were highlighted in State of H.P. v. Pawan  Kumar (2005 (4) SCC 350).

13.     In view of the aforesaid judgment by a three Judge Bench  of this Court, the acquittal, as directed by the High Court, is  clearly unsustainable. However, we find that other points were  urged in support of the appeal before the High Court, but the  High Court allowed the appeal filed by the accused only on the  ground of non-compliance of Section 50 of the Act. It did not  examine the other grounds of challenge. We, therefore, remit  the matter to the High Court to hear the appeal afresh on  grounds other than that of alleged non-compliance with  Section 50 of the Act, which, as noted above, has no  application to the facts of the case.  14.     The appeal is allowed to the aforesaid extent.